IN THE CASE OF:	  

		BOARD DATE:	        12 November 2008

		DOCKET NUMBER:  AR20080009079 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his military records be corrected to show that he retired early under the Temporary Early Retirement Authority (TERA).  He also requests that his reenlistment (RE) code be changed from RE-4 to RE-2.

2.  The applicant states that he believes he is eligible for an early retirement because he was in the Army for 11 years and the Army was offering early retirement to members with 10 years or more during a period of downsizing.  He also states the RE code was a typing error on the part of the clerk making out the DD Form 214 (Certificate of Release or Discharge from Active Duty).

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant enlisted in the Regular Army on 27 March 1973, served as an ammunition and storage operations specialist, and was honorably discharged on 9 April 1975 for immediate reenlistment.  He reenlisted on 10 April 1975 and remained on active duty through continuous reenlistments.  On 20 February 1985, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 16-5b, due to a locally imposed bar to reenlistment.  He had served a total of 11 years, 10 months, and 24 days of creditable active service.   

3.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "PARA [paragraph] 16-5B AR [Army Regulation] 635-200.”  Item 
26 (Separation Code) on his DD Form 214 shows the entry, "KGF."  Item 
27 (Reenlistment Code) on his DD Form 214 shows the entry, "RE-4."  Item 
28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "LOCALLY IMPOSED BAR TO REENLISTMENT.”

4.  Section 4403 of the National Defense Authorization Act for Fiscal Year 1993 (Public Law 102-484), as amended, provided for a TERA during the force reduction transition for enlisted personnel on active duty.  The purpose of this legislation was to provide the Secretary of Defense with an additional temporary force management tool to affect the drawdown of forces.  The law stated, in pertinent part, that “During the active force drawdown period, the Secretary of the Army may apply the provisions of Section 3914, Title 10, United States Code to allow early retirement of an enlisted member with at least 15 years but less than 20 years of service.  The active force drawdown period was defined as beginning on 23 October 1992 and ending on 1 October 1999; however, Congress later enacted legislation which extended the period of the drawdown and the early retirement authority to 31 December 2001.  

5.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation, in effect at the time, states the reason for discharge based on separation code “KGF” is “HQDA [Headquarters, Department of the Army] imposed bar to reenlistment; or locally imposed bar to reenlistment” and the regulatory authority is Army Regulation 635-200, paragraph 16-5a or b.  

6.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the 
U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

7.  RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.  

8.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

9.  RE-2 applied to persons fully qualified for enlistment who were separated before completing a contracted period of service and whose reenlistment was not contemplated.  This code was not used after 28 February 1995.

10.  The Separation Program Designator Code/Reentry Code Cross Reference Table, in effect at the time, shows that Soldiers given a separation code of "KGF" will be given RE-3 or RE-4; however, it also states that a Soldier with a local bar to reenlistment (less than 18 years active service) will be given RE-3.  

DISCUSSION AND CONCLUSIONS:

1.  Since the applicant was discharged in 1985 with less than 15 years of creditable active service, and the Army did not even offer the TERA until Fiscal Year 1993, the applicant was not eligible for retirement under the TERA.

 2.  Item 27 on the applicant’s DD Form 214 incorrectly shows his RE code as RE-4.  Therefore, it would be appropriate to correct item 27 on his DD Form 214 to show the entry, “RE-3.”

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entry, “RE-4” in item 27 on his DD Form 214; and 

	b.  adding the entry, “RE-3” in item 27 on this DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the TERA.



      _______XX_______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080009079



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ABCMR Record of Proceedings (cont)                                         AR20080009079



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